‘Britain is evolving from a democracy towards a kritarchy – the rule of lawyers,’ wrote Ross Clark in today’s Spectator magazine. His gloomy prediction has been proved correct almost immediately. A 3-2 majority in the Supreme Court today put the emergency brakes on long-standing plans to extract oil at Horse Hill in Surrey when it struck down the council’s necessary grant of planning permission. As with most legal decisions, the reasoning was convoluted. But in essence it was this: the court ruled that the environmental impact of emissions from burning fossil fuels must be considered in planning applications for new extraction projects, not just the impacts of the emissions produced in extracting them. Not having done this, it followed that its decision was flawed and had to be quashed.
This morning’s decision should be a big cause for concern
Whoops of delight predictably came from the environmental lobby. For the rest of us, however, this morning’s decision should be a big cause for concern.
It’s not only that by a stroke of the judicial word-processor we have lose the assurance of many million tonnes of Horse Hill oil which would have come in very useful. The decision signals that from now on it’s going to be difficult to extract hydrocarbons anywhere in the UK. Whatever the views of governments, local authorities and electors who (unlike many in the environmental industry) see their jobs and prosperity on the line, such projects are going to be increasingly difficult to shield from judicial review. Entrepreneurs will be less happy to undertake them against the prospect of their costs being judicially sunk, like the would-be oil involved, beyond recovery.
As a result, it’s going to be harder for the UK to keep the lights on and its economy going. The prospects were bad enough when Labour signalled that it would demonstrate its net zero virtue by refusing more North Sea extraction licences, despite the corollary that the UK might have to rely on imports in an increasingly unstable world. This morning’s legal input makes things a great deal worse.
You also have to remember that whatever environmental lawyers may say, there was nothing inevitable about this. However certain the rest of the law may be, judicial review is no exact science. There is nearly always an element of judgment involved, in the widest sense.
This case was no exception. There are two perfectly plausible reasons, adopted by various judges in the courts below, for not reading the reams of environmental law on planning permission as requiring a free-wheeling assessment of ‘downstream’ consequences. One is that it makes no sense to expect local bodies like Surrey County Council to become environmental guardian for the UK, the EU or, for that matter, the world – particularly since when it comes to using any oil extracted there are plenty of further environmental hoops to jump through. The other is that laws imposing a fairly open-ended requirement to consider direct and indirect consequences should be interpreted as leaving a great deal of wiggle-room for planning authorities.
Yet the Supreme Court – or at least the majority – was having none of this. It plumped for interpreting the legislation expansively and demandingly. In its first paragraph, it explicitly referred to the need to curb global warming; the court then chose to essentially discount the argument that this was an area where courts should tread warily.
The net result is exactly what Ross Clark predicted: an increase in the practical power of the courts to decide matters of enormous public significance, at the expense of democratically-elected councils and even of national parliaments. (The majority judgment specifically dismissed the idea that it should be dissuaded from intervening because extraction of oil was in accordance with official government policy.)
Perhaps we should have seen it coming. The legislation on which the decision was based, informed by a little-known UN treaty on informed environmental decision-making called the Aarhus Convention, was very much a product of technocracy and an expectation of complex laws closely overseen by judges.
Unfortunately, if the election in a couple of weeks goes the expected way, today’s decision may also be a reliable indication of the future. Labour is overwhelmingly a party of technocrats. It has fought tooth and nail against efforts to diminish the scope of judicial review: and it has said that it wishes to build bridges with the EU. With a majority sufficient to swat aside complaints from backbenchers and an ability to leave as much contentious decision-making as possible to judges, today’s ruling might just be the start.
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